England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th May 2006

Lord Justice Latham:

1. This is an appeal pursuant to Section 26 of the Extradition Act 2003 (the Act) against an extradition order made at Bow Street Magistrates Court on the 13^th February 2006 by District Judge Anthony Evans. He ordered the appellant to be returned to Lithuania to face trial for two offences of theft and one offence of burglary. It is accepted by the appellant that these offences are extradition offences pursuant to Section 64(3) of the Act. But he submits that the District Judge should not have made the order that he did because on the evidence before him he should not have been satisfied as he must under Section 21(1) of the Act, that extradition would be compatible with the appellant's convention rights within the meaning of the Human Rights Act 1998, and that, again on the evidence, it would be unjust or oppressive to extradite the appellant by reason of his mental condition so as to require his discharge pursuant to section 25 of the Act. Alternatively, it is submitted that the District Judge would have come to a different decision on these two issues had he had before him evidence now provided to this court, firstly as to treatment of offenders in Lithuania, and second as to the appellant's health, pursuant to section 27 (2) and (4)(a) of the Act.
2. As far as the new evidence is concerned, this consists of an expert report from Doctor Brad Blitz exhibiting thirteen reports relating, in particular, to the conduct of the police and conditions in prisons in Lithuania, and a psychiatric report from Dr Olumoroti dated the 29^th March 2006. None of this material was before the District Judge. Mr Cooper on behalf of the appellant accepts that this material should, ideally, have been before him. He explained that as far as the material relating to conditions in Lithuania was concerned, there had been substantial difficulties in collating it which had not only been experienced by him and his instructing solicitors, but also by others instructed on behalf of Lithuanians in respect of whom extradition has been sought. I hope that the material provided by Dr Blitz means that this will no longer be a problem in Lithuanian cases. It is not only important that a District Judge, who has the task of assessing the credibility of any oral witnesses, as well as evaluating objective material such as that obtained by Dr Blitz, should have all of the material before him in order to carry out that exercise properly.
3. It should be remembered that Section 27(4) of the Act, dealing with new evidence, refers to evidence at the appeal "that was not available at the extradition hearing". The word "available" makes it plain that, whilst I would not consider that the requirements of Ladd –v- Marshall [1954] 1WLR 1489, had to be met where not only the liberty of the individual, but also matters relating to human rights are in issue, nonetheless the court will require to be persuaded that there is some good reason for the material not having been made available to the District Judge. And where there could be any suggestion of the appellant "keeping his powder dry" he must expect the Court to view any application to rely on such evidence with some scepticism. In the present case, I am prepared to accept that the material provided by Dr Blitz could not have been obtained in time for the hearing before the District Judge. I am less convinced that the medical evidence could not have been. Nonetheless, in the circumstances of this case, we have read and are prepared to admit that evidence as part of the material upon which we should determine this appeal.
4. The evidence before the District Judge included oral evidence from the appellant. The salient parts of his evidence were that he was involved in the drugs culture. He had served five years imprisonment for an offence involving drugs. After his release he continued to sell drugs. According to the findings of the District Judge, some time in the winter of 2004 he was seized in the street by a group of police officers, bundled into a van and taken to the police station. He was subjected to violence in the van and at the police station when he arrived there. He agreed to work for the police, in other words to act as an informer. As a result, a number of those with whom he had worked were convicted and jailed. He then broke up with his girlfriend who by way of reprisal, it would appear, told his friends that he had been acting as an informer. He then told the police that he did not wish to work for them any longer. His evidence was that sometime after that, which he did not identify, he was attacked in the street by men wearing masks and was stabbed, as a result of which he was in hospital for three weeks. He could not remember whether he had reported this matter to the police. Eventually, in June 2005, he came to this country.
5. The District Judge, having referred to Osman –v- UK (1998) 29 EHRR 245, and Soering –v- United Kingdom in (1989) 11 EHRR 439, concluded that the test in relation to a breach of Article 2 of the European Convention on Human Rights was whether there was "an almost certainty" of the applicant being killed. This was accepted by the appellant, who did not pursue that point. As far as Article 3 of the Convention was concerned, the District Judge identified the test as requiring substantial grounds for believing that there would be a real risk of the appellant being tortured or subjected to inhuman or degrading treatment on his return. He concluded that there was no such risk, but in doing so put his findings in the following terms;

"The evidence given by him is not up to the appropriate standard i.e. on the balance of probabilities, that he would be in danger if returned, nor (sic) kept in inappropriate conditions."

6. The appellant further submitted that there was a real risk of his being deprived of a fair trial, contrary to Article 6 of the Convention. The District Judge, having reviewed the evidence in that respect concluded that the appellant had not made out his case, and rejected his arguments. There is no appeal against the District Judge's decision in that regard.
7. As far as Section 25 is concerned, that is the argument that it would be unjust or oppressive to extradite him, the evidence of the appellant was that on two occasions, on the 14^th and 16^th of October 2005, he had cut his wrists, on the latter occasion twice and on the final occasion deeply. He was taken to hospital for the wound to be sutured. In his evidence he said that in the first instance he wanted to die, but on the second occasion he did not really want to die. The District Judge concluded that his actions were merely attention seeking and no more. He noted that the appellant was not on suicide watch. There has been no indication that the appellant has taken any steps by way of self-harm since then.
8. As far as Section 21 is concerned, that is the argument that the District Judge could not be satisfied that extradition would not be contrary to the appellant's human rights, the appellant further relied upon four reports, two produced by the Human Rights Monitoring Institute in 2004 and 2005, a report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and an Amnesty International Report of 2002. The District Judge acknowledged that these raised questions about the reliability of justice in Lithuania, and the ability of the authorities to provide satisfactory protection. This was of importance in the context of the appellant's argument that he would be seen as an informant if he were to be returned to Lithuania, which would expose him to the risk of reprisals in prison. The District Judge was not impressed by this material. As far as the European Committee Reports and the Amnesty International Report were concerned, they related essentially to visits in February 2000. As far as the reports of the Institute were concerned, the District Judge considered that, since it had been set up specifically to look at the question of human rights in Lithuania, "caution must be exercised in considering these reports in view of the agenda of the reporting body". He did not consider that any of these reports raised sufficient concerns to justify the conclusion that he should not order extradition.
9. Dealing first with the appeal in so far as it relates to the District Judge's decision on the material before him, there are, it seems to me, two valid criticisms of his approach. First, as I have already indicated, he would appear to have applied the wrong standard of proof in relation to the risk of Article 3 ill-treatment. Insofar as he applied the balance of probabilities test, he was clearly wrong. He himself had identified the appropriate test as requiring substantial grounds for believing that there would be a real risk of the appellant suffering Article 3 ill-treatment. Even if, which I doubt, he did apply the wrong test in fact, I have no reason to doubt that on the evidence that the appellant gave as to his treatment in Lithuania before he left, this came nowhere near establishing substantial grounds that there was a real risk of Article 3 ill-treatment. He does not identify who his attackers were in the street. He gave no evidence as to how long before he left Lithuania that the attack had occurred. The police, however they may have behaved at the time they persuaded him to be an informer, seemed to have accepted his decision to cease that activity.
10. Second, as to the risk for the future, the District Judge gave, as one of his reasons for concluding that there would be no risk, the fact that although there were generalised allegations of police ill-treatment in the reports to which he was referred, the appellant would be returned to the custody of the prison authorities. In fact, the likelihood is that he would be returned in the first instance to police custody, and then transferred to prison. But in the light of his conclusion, which in my view is justified on the evidence, that the police would not appear to have any current interest in him save for the purposes of obtaining his return to face trial, the fact that he could well spend a short period of time in police custody could not justify the conclusion that there would be a real risk of his suffering Article 3 ill-treatment. As the District Judge found, the real fear that the appellant appeared to express was a fear of reprisals in prison from other prisoners because of his activities as an informer. The District Judge was entitled, in my view, to reject the argument that he would not be given adequate protection by the authorities on the basis of the reports that were before him.
11. The final point is made in relation to the District Judge's decision in this respect is that he was unduly dismissive of those reports. There is no doubt that he approached them with a degree of scepticism. That is not surprising bearing in mind the very general nature of the allegations that were made. That is not intended to belittle the reports. It is, however, important that reports which identify breaches of human rights, or other reprehensible activities on the part of governments or public authorities are kept in context. The fact that human rights violations take place is not of itself evidence that a particular individual would be at risk of being subjected to those human rights violations in the country in question. That depends upon the extent to which the violations are systemic, their frequency and the extent to which the particular individual in question could be said to be specifically vulnerable by reason of a characteristic which would expose him to human rights abuse. In relation to the risk of ill-treatment from other prisoners, the District Judge was right to conclude that the reports before him gave no sufficient support to the contention that he would not be given protection by the prison authorities. He himself made no complaints about ill-treatment whilst he had been in prison before. And he gave no details of those from whom he considered himself to be at risk so as to enable any judgment to be made as to the chances of their still being in prison, and being in a position, if they so wished, to harm him. The material could go no further than raising a speculative, as opposed to a real risk of his being harmed in prison. And that goes nowhere near establishing substantial grounds for believing that there would be a real risk of Article 3 ill-treatment in the sense that the authorities themselves would either be responsible for it, or be unable or unwilling to provide him protection from it.
12. As far as the issue under Section 25 was concerned, namely whether it would be unjust or oppressive to extradite him because of his mental condition, the District Judge only had the evidence of the appellant himself. The conclusion of the District Judge, that he was simply making a cry for help, was fully justified.
13. I turn then to the new material. This, as I have already said, consists of the report of Dr Blitz and its exhibits, and the report from Dr Olumoroti. The report of Dr Blitz is critical to the appellant's case. The first part consists of an overview of the reports. He sets out his key findings in paragraph 1.1. in the following terms:

"There is considerable and reliable evidence of ill-treatment by police and abuse, often at the point of arrest and transfer which is consistent with the defendant's witness statement;

There is considerable and reliable evidence of police brutality. The nature of injuries sustained by the defendant are consistent with these reports of police brutality.

There is considerable evidence of corruption and bribery in the police force that is consistent with the defendant's witness statement;

Prison conditions have been described by human rights monitors as poor and "life threatening". The increase in numbers on overcrowded populations and the rise of incidents of prisoners self harming is especially worrying;

The current provisions for prisoners requiring mental health treatment is poor and has been linked to increased rates of suicide within Lithuanian prisons;

The quality of provision for detainees and prisoners who require psychiatric care has been described by the Council of Europe's Committee on the Prevention of Torture as anti-therapeutic, inadequate and the source of serious concern;

The defendant's mental and emotional state would be at risk if he were returned to Lithuania and housed in either a prison or mental health institution within a prison."

14. Dr Blitz then considered the appellant's position in the light of these reports. Having stated that the reports provide support for the appellant's account of the way he was treated by the police, he then continued as follows:

"7.2 There are two important issues regarding the potential return of the appellant to Lithuania.

7.3. First, while the CPT (the Council of Europe's European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in a report based upon a visit in 2004) has noted few instances of deliberate ill-treatment to convicted defendants, there are multiple instances of police abuse at the point of arrest and pre-trial which could apply, especially if his transfer were under police guard. Guarantees would need to be provided that the defendant is not at risk of potential abuse by police or prison staff in advance of a trial hearing – this is especially important given the nature of his complaint.

7.4. There is a second concern that should be raised concerning the defendant's fragile mental state and above all his history of suicide. The current provisions in Lithuania for institutional treatment, whether it is outside the prison system or in one of the prison hospitals, have been described by international monitors as sub-standard and detrimental to the well being of vulnerable individuals. In recognition of the appalling material conditions of both the general prison level and in the prison hospitals, there is a real possibility of the defendant suffering further damage to his mental state and possibly attempting suicide once again.

8. Conclusion

8.1 This report introduces two essential claims in the case of Edgaras Miklis –v- Deputy Prosecutor of Lithuania first there is the considerable evidence of police brutality, as established by authorative monitoring bodies such as the Committee for the Prevention of Torture, US State Department and Human Rights Monitoring Institute.

8.2 Second, there is also good reason to presume that should the defendant be returned to Lithuania, he would not receive suitable mental health care in either a dedicated institution or a prison hospital. The universal accusations of overcrowding and the strong statements included in the CPT and State Department reports suggest that the anti-therapeutic environment, the poor facilities and the lack of adequate provision would further damage the defendant's fragile mental state."

15. The general statements by Dr Blitz are borne out by the contents of the reports. There is little doubt that the behaviour of the police has been the subject of adverse comment over a significant period of time. There is, it should be said, also clear evidence that the authorities do not condone it, although clearly there is scepticism about the extent to which effective steps are being taken to improve the situation. In the latest CPT Report, which would appear to be the most informative and authoritative, the way it is described is as follows:

"12. As was the case during the 2000 visit, the delegation received many allegations of ill-treatment of persons – including minors – deprived of their liberty by the police. The allegations heard related mainly to the time of apprehension and to the period surrounding the investigation by the police; certain persons alleged ill-treatment during transport by the Convoy Division. The forms of ill-treatment alleged consisted of mostly of blows with hands or fists, with objects such as batons or belts. In several cases the alleged ill-treatment – asphyxiation by placing a gas mask or a plastic bag over the persons face, severe beating, infliction of electric shocks and mock execution - could be considered to be torture.

In a number of cases, the delegation was able to verify that the person concerned had been held in police establishments during the period to which the ill-treatment in question could be ascribed; moreover certain of them provided accurate descriptions of the offices where they claim it had taken place. Further, medical records reveal that upon their admission to police or police detention centre numerous persons had displayed injuries consistent with their allegations of ill-treatment."

16. This material undoubtedly gives rise to concern about the way that police have behaved and the ability of the authorities to control that behaviour. But it does not go anywhere near establishing that the appellant, who it is accepted would only be in police custody temporarily, would be at real risk of Article 3 ill-treatment, that is torture or other inhuman or degrading treatment. The evidence does not suggest that the police systematically ill-treat those who are arrested. Whilst it undoubtedly supports the appellant's evidence in relation to the way he was treated when he was taken to the police station and persuaded to become an informer, it by no means follows that there is a real risk that he will be ill-treated were he to be returned into police custody now, let alone ill-treated to an extent to amounting to a breach of Article 3.
17. Insofar as the assertion is that the appellant would be at real risk of Article 3 ill-treatment in prison, this falls into two parts. The first is his concern about the behaviour of fellow prisoners. There is certainly evidence that in two prisons at which he might be held, there have been serious incidents of inter prisoner violence. Only a few in the relevant prisons made any complaints about ill-treatment by staff. The material does not suggest that inter prisoner violence is commonplace, let alone condoned. The most that can be said is that the CPT was not satisfied that sufficient steps had been taken to institute prosecutions when such incidents occurred. This material does not provide a sufficient basis upon which the District Judge could have concluded that the appellant's life was at risk in the sense envisaged in the case of Osman –v- United Kingdom (1998) 29 EHRR 245, nor does it support the conclusion that there is a real risk that he will be subject to Article 3 ill-treatment were he to be returned.
18. The second aspect of the appellant's argument in relation to treatment in prison is the effect on his mental health, and the availability of appropriate treatment. The validity of Dr Blitz's conclusion depends upon the extent to which the medical evidence supports Dr Blitz's premise that the appellant's mental state is fragile and that he has a history of suicide. The psychiatric report of Dr Olumoroti who has been the psychiatrist responsible for his care at HMP Brixton. He assessed him after the second occasion when he self-harmed. He describes how the appellant appeared stressed regarding his extradition to Lithuania. He describes him as vulnerable. But he says that the appellant displayed no behavioural or other abnormalities. He was suffering from an acute distress reaction and had self-harmed due to the prospect of being extradited. Although he had made remarks to staff that he was willing to die in prison, he did not maintain this position for long. He told the doctor that there was no point in harming himself any further and was resigned to being extradited. He had no psychiatric history. As a person who had self-harmed, the doctor's view is that there is the risk that he might self-harm again, and therefore requires a higher level of supervision than other prisoners, at least for a period of time. But there is no evidence in the appellant's case of depression or any other psychiatric illness which requires any treatment.
19. Further there is no evidence of any reoccurrence of self-harming episodes since October 2005. It does not seem to me that in those circumstances the appellant's mental state can properly be described as "fragile" in the sense that he is at risk of any significant psychiatric or other harm. In the light of the report, it must be at the very least doubtful that there was any real attempt at suicide. The doctor's repeated use of the phrase "self-harm" accords with the District Judge's assessment of the situation at the hearing. In those circumstances, the further evidence with which we have been provided would not have affected his decision. Nor should it have done.
20. I would therefore dismiss this appeal.

Mr Justice Tugendhat: I agree.